Claim was dismissed for improper service.
|Claimant(s):||KEISHAWN WATSON, 16 R 0423|
|Claimant short name:||WATSON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Keishawn Watson, Pro Se
|Defendant's attorney:||Honorable Barbara D. Underwood, Attorney General
By: Glenn C. King, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 22, 2018|
|See also (multicaptioned case)|
Defendant moves to dismiss the claim for improper service pursuant to CPLR 3211 (a) (2).
Claimant, an inmate in the custody of the Department of Corrections and Community Supervision, alleges he was cut on the right side of his face by another inmate in the main yard of Great Meadow Correctional Facility on January 14, 2018. While the pre-printed portion of the claim indicates that the claimant served a notice of intention to file a claim on March 15, 2018, the affidavit of service filed with the claim indicates that a claim, not the notice of intention, was served on that date.
Defendant contends in support of its motion that the claim was served by ordinary mail rather than personal service or certified mail, return receipt requested, as required by Court of Claims Act § 11 (a) (i). Defendant supports its motion with a copy of the envelope in which the claim was mailed, which contains none of the indicia of a certified mailing (see defendant's Exhibit A).
Court of Claims Act § 11 (a) (i) requires that the claim be filed with the Clerk of the Court and that "a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general . . ." Inasmuch as the filing and service requirements of Court of Claims Act §§ 10 and 11 are jurisdictional in nature, they must be strictly construed (Lurie v State of New York, 73 AD2d 1006, 1007 [3d Dept 1980], affd 52 NY2d 849 ; see also Dreger v New York State Thruway Auth., 81 NY2d 721, 724 ). Absent waiver of the defense of improper service (Court of Claims Act § 11 [c]), service of a claim by ordinary mail is insufficient to acquire jurisdiction over the defendant (Encarnacion v State of New York, 133 AD3d 1049 [3d Dept 2015], lv denied 26 NY3d 919 ; Brown v State of New York, 114 AD3d 632 [2d Dept 2014]; Fulton v State of New York, 35 AD3d 977 [3d Dept 2006], lv denied 8 NY3d 809 ; Govan v State of New York, 301 AD2d 757 [3d Dept 2003], lv denied 99 NY2d 510 ; Thompson v State of New York, 286 AD2d 831 [3d Dept 2001]).
Defendant established, through the submission of a copy of the envelope in which it was mailed, that the claim was improperly served by ordinary mail rather than one of the methods prescribed by Court of Claims Act § 11 (a) (i). Notably, the affidavit of service of the claim filed in the Office of the Clerk of the Court of Claims fails to reflect service of the claim by certified mail, return receipt requested. Inasmuch as the defendant preserved its objection to the manner of service by raising it in the instant pre-answer dismissal motion (Court of Claims Act § 11 [c]), the claim must be dismissed.
Claimant should be aware that a motion for permission to file a late claim may be made pursuant to Court of Claims Act § 10 (6).Based on the foregoing, the defendant's motion is granted, without opposition, and the claim is dismissed.
August 22, 2018
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims